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Marek v. Chesny

Citation. Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 87 L. Ed. 2d 1, 53 U.S.L.W. 4903, 38 Fair Empl. Prac. Cas. (BNA) 124, 37 Empl. Prac. Dec. (CCH) P35,396, 1 Fed. R. Serv. 3d (Callaghan) 1297 (U.S. June 27, 1985).
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Brief Fact Summary.

In a federal civil rights action, Marek (Defendant) argued that a Fed. R. Civ. P. 68 offer precluded the awarding of attorney fees to Chesny (Plaintiff), who received a judgment for less than the amount of the offer.

Synopsis of Rule of Law

Under 42 U.S.C. § 1988, a Fed. R. Civ. P. 68 offer may preclude the awarding of attorney fees.


Chesny (Plaintiff) brought a federal civil rights action against numerous defendants, claiming excessive use of force.  With the trial approaching, a Fed. R. Civ. P. 68 offer of $100,000 to settle was made.  Plaintiff rejected, the case went to trial, and a jury awarded $60,000.  The district court, pursuant to 42 U.S.C. § 1988, awarded attorney fees to Plaintiff, but not for the period after the Rule 68 offer was rejected, ruling that Plaintiff’s lesser verdict precluded such an award.  The Seventh Circuit reversed, and the Supreme Court granted review.


Under 42 U.S.C. § 1988, may a Fed. R. Civ. P. 68 offer preclude the awarding of attorney fees?


(Burger, C.J.)  Yes.  Under 42 U.S.C. § 1988, a Fed. R. Civ. P. 68 offer may preclude the awarding of attorney fees.  Fed. R. Civ. P. 68 provides that when a defendant makes an offer which is rejected, the defendant will not be liable for the plaintiff’s costs after the date of rejection.  Section 1988 states that attorney fees may be awarded to a prevailing plaintiff as part of his costs.  Therefore, under a clear reading of the two provisions, Rule 68 would appear to impact on S 1988.  However, it is argued that applying Rule 68 to S 1988 would frustrate the purpose behind the latter section.  This Court disagrees.  Section 1988 only provides for awarding “reasonable†attorney fees.  If a reasonable offer is rejected, it stands to reason that fees incurred thereafter are not reasonable.  Basically, S 1988 exists to encourage suits with merit, and Rule 68 exists to encourage settlement.  These sections do not conflict with each other.  Reversed.


The scenario that usually comes to mind when one considers conflicts of laws is that of competing laws of different jurisdictions.  However, when different laws of the same jurisdiction would tend to work against each other, a conflict basically exists.  The usual method to resolve this kind of conflict is to first look to the language of the competing laws and, then, to try and distinguish legislative intent.

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